Gerry "The Monk" Hutch has asked the Supreme Court to hear an appeal over a refusal to halt his trial before the non-jury Special Criminal Court later this year.
He argues the Supreme Court should hear his appeal because it raises an urgent matter of general public importance affecting himself and others who have challenged the jurisdiction of the Special Criminal Court to try them when, they contend, they are entitled to trial by jury.
Mr Hutch (58), with an address at Clontarf, Dublin, is charged in connection with the murder of David Byrne at the Regency Hotel, Whitehall, Dublin, on February 5th, 2016.
He and a co-accused, former Sinn Féin councillor Jonathan Dowdall (44), of Navan Road, Cabra, Dublin, lost separate High Court applications last month aimed at quashing the DPP's decision to try them before the Special Criminal Court.
The core claim in their challenges was that they should not be tried under what effectively amounts to emergency legislation introduced during the Northern Ireland conflict.
The Special Criminal Court, they argued, has essentially and unlawfully become a permanent court within the Irish legal system. The present iteration of the Special Criminal Court is based on a 1972 proclamation to combat terrorism and it is not legally permissible for that court to try them 50 years later for alleged organised crime activities, they claimed.
The State argued there was no time limit found in the Offences Against the State Act 1939 for a proclamation setting up a non-jury court. As long as it was determined that the ordinary courts were inadequate to secure the effective administration of justice in certain cases, the executive was entitled to continue the operation of the Special Criminal Court, it submitted.
In dismissing the actions, Mr Justice Anthony Barr held there was no time limit on the use of the non-jury court based on the applicable legislation.
The judge said the question as to whether the ordinary courts are adequate to secure the effective administration of justice was “a purely political question” and, given judicial deference to executive action, it was not a matter for the court to make a judgment on that issue.
Mr Hutch's application for a "leapfrog" appeal, one direct to the Supreme Court rather than the normal route via the Court of Appeal, was lodged by Ferrys Solicitors on Tuesday.
There is no automatic right to a “leapfrog” appeal and a panel of Supreme Court judges will decide later whether Mr Hutch’s application meets the criteria for such an appeal.
The criteria require Mr Hutch to establish his case involves a matter of general public importance and/or that an appeal is necessary in the interests of justice.
He is seeking an appeal on the basis his case involves a matter of general public importance.
The government, he claims, may only make a proclamation bringing into effect a non-jury court as a temporary and emergency measure. The current political and security landscape does not permit the operation of such a court, it is argued.
Mr Hutch claims the mainstay of prosecutions before the Special Criminal Court now relate to organised crime rather than subversive offences, and the court is unlawfully operating on a permanent rather than temporary basis.
It is not appropriate that his right under the Constitution and European Convention on Human Rights to a jury trial is abrogated under emergency temporary legislation, he argues.
The case, it is also submitted, involves the necessary exceptional circumstances requiring a “leapfrog” appeal because it raises a matter of general public importance affecting the trial of Mr Hutch and other trials before the Special Criminal Court where its jurisdiction is also the subject of challenge.